Carl R Boyd v. Carolyn W Colvin

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick, the decision of the Social Security Commissioner is REVERSED and the matter is REMANDED for further proceedings consistent with this opinion. (jp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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CARL R. BOYD,
Plaintiff,

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v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.

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) Case No. CV 13-4139-DFM
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) MEMORANDUM OPINION AND
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) ORDER
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Plaintiff Carl Boyd (“Plaintiff”) appeals from the Commissioner’s denial

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of his applications for child’s insurance benefits and Supplemental Security

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Income (“SSI”) benefits. The Court concludes that the Administrative Law

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Judge (“ALJ”) erred when he concluded that Plaintiff could perform work in

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the national economy. Accordingly, this Court reverses the ALJ’s decision and

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remands for further proceedings.

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I.

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BACKGROUND

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Plaintiff filed his applications for child’s insurance benefits and SSI

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benefits on November 5, 2009, each alleging disability beginning February 28,

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2005. Administrative Record (“AR”) 27. After a hearing on July 13, 2011, the

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ALJ concluded that Plaintiff’s asthma and affective disorder were severe

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impairments. AR 29. The ALJ concluded that Plaintiff has the residual

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functional capacity (“RFC”) to perform light work with several limitations,

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including a limitation to “tasks with one or two step instructions.” AR 29-30.

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A vocational expert (“VE”) testified at the hearing that an individual with

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Plaintiff’s RFC could perform the duties of a shoe packer, referencing the

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Labor Department’s Dictionary of Occupational Titles (“DOT”) as she

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described this work. AR 60. The ALJ relied on the VE’s testimony to conclude

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that Plaintiff was capable of making a successful adjustment to other work that

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exists in the national economy and accordingly found that Plaintiff was not

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disabled. AR 33-34.

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II.

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ISSUES PRESENTED

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The parties dispute whether the ALJ erred when he found (1) that

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Plaintiff was capable of performing work that exists in significant numbers in

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the regional and national economy; and (2) that the job of shoe packer existed

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in sufficient numbers in the regional and national economy. See Joint

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Stipulation (“JS”) at 3.1

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III.

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DISCUSSION

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A.

Standard of Review and Pertinent Law
Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits. The ALJ’s findings and decision

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should be upheld if they are free from legal error and are supported by

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Because the Court concludes that the ALJ erred in concluding that
Plaintiff was capable of performing work in the national economy at step five,
the Court does not reach the remaining issue and will not decide whether this
issue would independently warrant relief.
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substantial evidence based on the record as a whole. 42 U.S.C. § 405(g);

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Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d

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742, 746 (9th Cir. 2007).

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At the fifth step of the five-step claims evaluation process, the agency

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bears the burden of showing that a claimant can perform work that exists in

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“significant numbers” in the national economy, taking into account the

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claimant’s RFC, age, education, and work experience. Tackett v. Apfel, 180

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F.3d 1094, 1098, 1100 (9th Cir. 1999). A vocational expert’s testimony may be

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sufficient to carry that burden; however, the expert’s opinion must reflect all

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limitations the ALJ includes in the RFC. Osenbrock v. Apfel, 240 F.3d 1157,

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1162-63 (9th Cir. 2001).
When an expert’s testimony conflicts with a DOT job listing, the ALJ

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“must elicit a reasonable explanation for the conflict before relying on the

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[expert’s] evidence to support a determination or decision about whether the

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claimant is disabled.” SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000).

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Thus, if there is a conflict between the expert’s opinion and the DOT

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parameters, the ALJ must determine that the expert has a “reasonable

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explanation” for this conflict. Massachi v. Astrue, 486 F.3d 1149, 1153-54 (9th

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Cir. 2007). Where an ALJ fails to do this, this Court cannot determine whether

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there is substantial evidence to support the ALJ’s step-five finding and must

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remand for further proceedings. Id. at 1154.

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B.

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Analysis
Plaintiff contends that the ALJ erred in determining, based upon the

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VE’s testimony, that he was capable of performing the job of shoe packer

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because that job, as described in the DOT, is incompatible with the ALJ’s RFC

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assessment. JS at 4-8. As relevant here, the ALJ’s RFC assessment determined

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that Plaintiff was able to perform light work with a further limitation to “the

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performance of tasks with one or two step instructions.” AR 30. Plaintiff
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contends that this limitation precludes him from work as a shoe packer because

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that job requires Reasoning Level 2 on the 6-level General Education

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Development (“GED”) scale used in the DOT. JS at 5.

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A job involving Level 2 reasoning means that an individual must be able

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to “[a]pply commonsense understanding to carry out detailed but uninvolved

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written or oral instructions [and] deal with problems involving a few concrete

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variables in or from standardized situations.” DOT, App’x C, 1991 WL

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688702. The DOT classifies shoe packer as a Reasoning Level 2 job; the Court

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observes that this classification is generally consistent with the DOT’s

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description of the job.2
This case thus presents a dispute that has recurred with some frequency

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in this district: whether an RFC that limits a claimant to tasks with one- or

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two-step instructions is inconsistent with a job that requires Level 2 reasoning

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under the DOT. Although the Ninth Circuit has not addressed this issue, many

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judges in this district have, and it appears that all have decided it against the

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Commissioner. See, e.g., Ruiz v. Colvin, No. 12-1628, 2013 WL 3878957, at

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*3 (C.D. Cal. July 26, 2013) (“A limitation to simple one and two step tasks is

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inconsistent with Reasoning Level Two.”); Cardoza v. Astrue, No. 10-936,

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2011 WL 1211469, at *2 (C.D. Cal. 2011) (finding limitation to one and two-

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step repetitive work tasks would preclude jobs, including shoe packer,

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requiring Level 2 reasoning skills); Grigsby v. Astrue, No. 08-1413, 2010 WL

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309013, at *2 (C.D. Cal. 2010) (“The restriction to jobs involving no more than

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two-step instructions is what distinguishes Level 1 reasoning from Level 2

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reasoning.”).

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The DOT describes the duties of a shoe packer as: “Packs paired shoes,
according to case number, in cartons for shipment. May inspect shoes for
defects prior to packing.” DOT 920.687-166, 1991 WL 688001.
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The Court has reviewed the DOT description of a shoe packer’s

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responsibilities. It is not clear to the Court whether someone limited to one-

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and two-step instructions would be able to perform these responsibilities. This

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lack of clarity is exacerbated by the DOT’s categorization of the job as

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Reasoning Level 2, a level higher that Reasoning Level 1, which expressly

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mentions the ability to “carry out simple one- or two- step instructions.” 1991

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WL 688702. Put another way, the Court’s concern about whether Plaintiff

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could work as a shoe packer would be diminished if the DOT categorized the

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job as Reasoning Level 1.3
The Court’s concern could be easily put to rest if the VE offered a

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“reasonable explanation” for how a person with Plaintiff’s limitation could

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perform the job of shoe packer, a Level 2 reasoning job under its DOT listing.

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But the VE offered no explanation at all. AR 60. Nor did the VE provide an

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evidentiary basis for the ALJ to justify a divergence from the DOT listing in

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this particular case. AR 60.
The disparity between the DOT listing and VE’s testimony required a

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“reasonable explanation” from the VE in order for the ALJ to properly rely on

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the testimony. Where, as here, no such explanation has been given, the Court

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must remand to the agency for further proceedings. See Massachi, 486 F.3d at

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1154.

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This is why the Court finds ultimately unpersuasive the
Commissioner’s point about the different purposes being served by reasoning
levels under the GED and the assessment of claimant’s RFC. The DOT
expressly includes a reasoning level for each job it describes.
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IV.

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CONCLUSION

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For the reasons stated above, the decision of the Social Security

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Commissioner is REVERSED and the matter is REMANDED for further

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proceedings consistent with this opinion.

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Dated: March 6, 2014
______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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